SCJ Scalia was a staunch Constitutionalist. I have no doubt that his rulings were as close to the Founding Fathers’ intentions as possible. He will be sorely missed. Absolutely. He understood the separation of powers and that one branch was not all powerful; an understanding that is severely lacking in 99% of Washington today. I would argue that unpopularity, particularly among the legislative and executive classes, is precisely the hallmark of a great justice. It’s been recognized by great minds for a long time that in any kind of democracy, people eventually want to vote themselves things from the public largesse and are perfectly willing to take from others in order to give to themselves.
Bureaucrats for instance desire to take power, legislators to take executive authority, executives to take legislative authority, the poor to take from the rich, the rich to take from their competitors, and so on and so forth. Each of these parties of course, can’t do diddley-squat without the force of government, but by restricting that force within the bounds of the Constitution, even in unpopular ways, Justice Scalia displayed due deference to the responsibility of his position. He understood that, despite what popular opinion might be at any moment, it wasn’t the job of the federal government or the court to decide what should be in health insurance, or how much people (or the legal entities they create) should be able to spend on advertising, or what kind of advertising they should be able to buy, or what combination of numbers and sexes constitute marriage, or what the rules of golf are, or at what point something is or is not a human being, or what “secret” rights are hidden between the lines of the Constitution. But people – all people – want to take power and money for themselves, even at the expense of others, and to these people Constitutionalism is the villain because it prevents the easiest way to take power and money – government coercion, of which the current Obama administration is a supreme master.
No, Justice Scalia understood that these issues were not, and do not fall within the confines of the United States Constitution, which clearly spells out what the Federal Government can and cannot do. It also lists, in the Bill of Rights, those rights that are protected. But abortion is not in the Constitution, nor is homosexuality or marriage (of any kind). Each State of the Union has its own Senate and House of Representatives, together with a presidential equivalent called a Governor. Each State also has its own justice department with an Attorney General. And finally, each State has its own Supreme Court. Why? Because each State was/is meant to operate on its own. The United States of America is a country made up of individual States in which the federal government is tasked to have a very limited role and whatever can be handled by the States should be placed under their purview. The things they can’t handle? Well that’s what the federal government is supposed to do. National defense for example, security and safety of its citizens, securing the borders, trade, commerce and currency, foreign affairs, immigration, etc., etc.
Justice Scalia understood this. Did he have a personal opinion that didn’t agree with abortion? Yes. Homosexual marriage? Yes. However, he understood that personal opinions didn’t matter in his position. He was there to vote “yes” or “no” on whether or not something was Constitutional. If it’s not something in the Constitution, then it’s an automatic vote “no”. What does the Constitution say about things that aren’t within it? That they revert back to the States. Clear and simple. Time to salute the contribution of Justice Scalia by strongly endorsing the notion that the United States of America is a Constitutional Republic, NOT a banana republic the likes of what this Obama reign of terror has wrought on the nation since January 20th 2009.
Dr. Russell Dawn explains in detail from the Federalist titled “Scalia’s Enemies Prove his Greatness”..
When those who would eviscerate the Constitution viewed Antonin Scalia as their greatest enemy, they unwittingly honored him.
Several years back, a poll in the United Kingdom asked respondents to name history’s greatest enemy of the British Empire. The winner of the poll was George Washington. As an American then living in England, I was delighted by the choice. The British people inadvertently paid Washington a great honor, for they named him the bane of an empire, which, at least in his time, had become an enemy of liberty. Washington was, as the poll unwittingly acknowledged, a truly great man.
Societies, even exceptional ones, produce great men sparingly, and true greatness seems to be in particularly short supply these days. Alas, the supply grew even shorter last Saturday. That day, Supreme Court Justice Antonin Scalia died.
It is not difficult to find homages to Scalia on the Internet. There are lists of his most notable takedowns of opposing points of view, discussions of his finest juridical achievements, and paeans to all he has meant to the highest court in the land. My offering will differ from many of these, examining instead the foundation or fundamental character that made him great. That foundation was his approach to authority.
Scalia was a good Catholic, and a sine qua non of good Catholicism is recognizing that one is under authority: under God, under the pope, under authority. In his vocation on the Supreme Court, Scalia also rightly saw himself as under authority—that of the U.S. Constitution. First and foremost, the Constitution separates the various powers inherent in government.
The power of the Court is not the power to make laws, nor is it the power to execute them. Those powers the Constitution reserves to those who must face political consequences for infidelity, overreaching, or foolishness.
The judicial power, that of interpreting the law and applying it to particular cases, is at once greater and, more importantly, less than the legislative and executive powers. It is greater in that it can undo what the other branches have done. Carried out properly, it is the last defense against predatory, unconstitutional government, save the people themselves. It is less than the others because it rightly can do nothing against unwise government, unenlightened government, or even unjust government, to the extent the injustice is lawful under the Constitution.
Scalia understood all of this, and lived it. His judicial conservatism was, above all else, a refusal to violate the Constitution’s separation of powers, to extend his own power beyond its authority.
Continue reading to the end…